The Massachusetts Legislature legalized medical marijuana in the Commonwealth by enacting the Humanitarian Medical Use of Marijuana Act of 2012. Massachusetts become one of 22 other states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia to allow health care providers to recommend medical marijuana for their patients, and to allow patients to obtain this product from dispensaries licensed and regulated by the state.

Many physicians see medical marijuana as a desirable option for their patients with severe pain, offering pain relief as effective as opiates with less danger of overdose or addiction. The response from employers and insurance companies is less favorable. Workers’ compensation insurers throughout the United States are viewing with alarm the increasing number of states legalizing medical marijuana. Many organizations are advising employers and insurers to decline to pay for or reimburse employees for the cost of medical marijuana, even when it is recommended by a health care provider for relief of severe pain from a work-related injury.

The primary justification for this refusal is federal law. Under 21 U.S.C. §§ 812, 822, 823(f), the federal Controlled Substances Act (CSA), marijuana is classified as a Schedule I controlled substance, illegal to use or possess except in federally approved research, but not medical use. However, the United States Justice Department has stated that medical use of marijuana is not one of the areas where it prioritizes enforcement, instead deferring to state and local laws.

The issue of the compensability of medical marijuana under workers’ compensation laws has not yet been litigated in Massachusetts. There has been a case in New Mexico, however. A court of appeals, in the case of Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, ordered an employer to reimburse an employee for the cost of medical marijuana as treatment for pain due to a work injury.

The employee had hurt his back at work and had been treated with surgery, narcotic pain medications, and anti-depressants, without significant relief. His treating physician recommended medical marijuana. The workers’ compensation judge granted the employee’s request for approval of his physician’s recommendation and ordered the employer to reimburse the employee for the cost. The employer and the employer’s workers’ compensation insurance carrier moved for reconsideration. The workers’ compensation judge denied the motion. The employer and insurer appealed.

Before the Court of Appeals, the employer reiterated its objections, but the Court of Appeals overruled the objections regarding potential violations of federal law and policy and affirmed the decision by the workers’ compensation judge. The employee was entitled to treatment for the pain from his work injury, medical marijuana had been recommended by his doctor, and the employee was eligible for the state’s medical marijuana program.

It has only been two years since the enactment of the Commonwealth’s medical marijuana law. Workers’ compensation attorneys anticipate that the compensability of medical marijuana under workers’ compensation will come before a Massachusetts court in the near future.

For more information about the workers’ compensation process, contact a Boston workers’ compensation attorney from Pulgini & Norton to schedule a free consultation to find out more about what our lawyers can accomplish for you. Contact us with a brief description of your situation or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.